Part 3 Consequences of Removal Chapter 10 Children’s Experiences

were placed with non-Aboriginal foster parents and 51% had been in a long-term placement for four or more years. Justover one-third (37%) of the children in non-Aboriginal foster care were experiencing some negative or bad feelings about their Aboriginality whereas two-thirds (65%) of non-Aboriginal foster parents did not perceive racism as an important problem for their foster child (SAAboriginal Child Care Agency Forum Inc 1988pages9,10 and 17). South Australia is still lagging behind national rates in the utilisation of Indigenous carers for Indigenous children in out-of-home care. Only 67% of children in such care were placed with Indigenous carers (Government ServiceProvision 1997page 554).

Northern Territory Like the NSW legislation, the NT Community Welfare Act 1983 includes a presumption in favour of the ACPP. Section 69 obliges the Minister to ensure that every effort is made to place the child within his or her extended family. If this placement cannot be arranged to the Minister’s satisfaction, placement with Aboriginal people who have the correct relationship with the child in accordance with customary law is the second preference.

Alternatives may be considered only where a placement according to either of these preferences would endanger the welfare of the child. At this stage the child’s parents, other people with responsibility for the child’s welfare under customary law and Aboriginal welfare organisations as are appropriate in the case of the particular child must be consulted. The aim is to find a placement that is in the best interests of the welfare of the child. In addition to consultations, the department must take the following factors into considerationin selecting a placement,

• preference for custody of the child by Aboriginal persons who are suitable in the opinion of the Minister,

• placement of the child in geographical proximity of the family or other relatives of the child who have an interest in, and responsibility for, the welfare of the child, and

• undertakings by the persons having the custody of the child to encourage and facilitate the maintenance of contact between the child and the child’s own kin and culture.

The NT welfare department requires workers to apply the ACPP in all cases and to prioritise cultural continuity. The Act further obliges the Minister to provide support and assistance to Aboriginal communities and organisations for the welfare of Aboriginal children and families, including the trainingand employment of Aboriginal welfare workers (section 68). However, no powers or functions under the Act are delegated to Aboriginal organisations. The final decision about placements rests with the welfare department alone.

The ACPP has been legislatively recognised for over a decade in the NT. It is the jurisdiction with the lowest level of over-representation of Aboriginal children in substitute care.

Victoria Decisions about children’s welfare and child placement in Victoria are made in a process known as ‘case planning’. The Children and Young Persons Act 1989 (Vic) requires the welfare department to involve ‘relevant members’ of the child’s Aboriginal community in case planning (section 119(1)(m)(i)).

Placement of an Indigenous child must be witha member of the child’s community unless such a person is not reasonable available. In that case the child is to be placed with another Aboriginal person.

In the event that no Aboriginal carer is reasonably available for the child, a non-Indigenous carer may be selected. The approval of an Aboriginal agency must be obtained before such a placement can proceed (section 119(2)). As in South Australia, Aboriginal agencies are accredited for the purposes of the Act. The Victorian Aboriginal Child Care Agency (VACCA) is the most notable example.

In 1992 a protocol between the Department of Health and Community Services (CSV) and VACCA was signed. It reiterates that CSV has statutory responsibility in relation to child protection services for all children in Victoria under the age of 17 years. While the protocol does not delegate authority to VACCA, it affirms VACCA’s right to be consulted and involved from the point of notification (that is receipt of an allegation regarding an Indigenous child’s well-being) and that VACCA should be invited to all case conferences.

VACCA must be involved in all significant decisions made about an Aboriginal child. The Act lists the following significant decisions:

• decisions made in the course of investigations conducted after a notificationis reviewed,

• decisions made in the course ofpreparing a protection report or disposition report,

• decisions made in assessingwhetherornot a protection application shouldbe made,

• decisionsrelating to theplacement or supervisionof the child whether madebefore or after a protection applicationor protectionorder is made, and

• the holding of meetings for the purposeof formulating a case plan (Children and Young Persons Act 1989 section3).

No Aboriginal child is to be placed without VACCA’s involvement in the decision although the department retains final decision making power. However, the Inquiry was told that VACCA is frequently not involved in decision making until very late in the process, sometimes only after the child has been in substitute care for more than two years (VACCA evidence335).

The protocol also provides for CSV to contract out to VACCA the case management of an Aboriginal child on a protective order on a case by case basis. It also provides for mutual co-operation in training staff and a dispute resolution mechanism.

In addition to approving or vetoing the placement of an Indigenous child with a non-Indigenous carer, the agency has a role in the court process. A court cannot make a permanent care order for an Aboriginal child until it has received a report from an Aboriginal agency (section 112). VACCA advised the Inquiry that it is very reluctant to recommend permanent placements because they are contrary to the objective of family reunion (evidence 335). The court, however, is not bound to follow the advice of the agency.

Indigenous children constitute approximately0.8% of all children in Victoria. In 1994 Indigenous children made up 8.7% of CSV clients. In 1994-95 Aboriginal children were three times more likely to be notified to the department than other children and as at June 1995 they were five times more likely to be on a protection order. As at 30 June 1994 Aboriginal children were twelve times more likely to be involved with placement and related support services than other children. Indigenous children are seriously over-represented at all stages of intervention and their rate of over-representation increases as the degree of intervention increases.

The rate of Victorian Indigenous children’s over-representation in substantiated cases of neglect and abuse is similar to the national average for all children. However, the over-representation of Indigenous children in out-of-home care in Victoria far exceeds the national average for both non-Indigenous and Indigenous children in out-of-home care. The average out-of-home placement rate for children in the general population is 2.7 per 1,000. The rate of placement of Victorian Indigenous children in out-of-home care was 40 per 1,000 (Bath1994 page 7).

Almost 80% of Indigenous children in out-of-home care in Victoria were placed with Indigenous carers at the end of June 1996 (Government Service Provision 1997 page555).

Western Australia Approval for the selection of placements for Aboriginal children removed from their families rests with the Director General of the State welfare department in WA. The ACPP is not specifically spelt out in legislation or policy but is covered by a general statement, inserted in 1984, under the heading of ‘Substitute Care Policy in Relation to Aboriginal Child Placement’. The ‘principles of Aboriginal children’s welfare’ are said to recognise the importance of customary roles and responsibilities of the Aboriginal extended family in child rearing. In pursuit of this objective, the maintenance of the child within his or her own family and community is to be the first priority of the department. The Principles are,

• … To acknowledge the importance of maintaining and promoting the relationship between the child, theparents, guardiansorpersonshaving the custodyof the child(andwhere appropriate, the extendedfamily of the child).

• To maintain the continuityofliving arrangements in the child’s usual ethnic and social environment.

• To consultwith the child’s parents and other personswith responsibility for thewelfare of the child inaccordancewithAboriginal customary law; and such Aboriginalorganisations as are appropriate in the care of theparticular child.

• To encourageAboriginal control in matters relating to thewelfare andcare of Aboriginal children and practice sensitivity andhaverespect for Aboriginal cultural issues inproviding child welfare servicesto Aboriginals.

The policy directs the department that ‘[o]ther than in serious crisis situations, child removal should be a planned and co-ordinated action based upon a case conference which includes consultation with relevant Aboriginal organisations/community persons’.

The policy offers no guidance on the order of priority for placement decisions or on the weight to be placed on cultural factors. While the department claims that the ACPP is put into practice through its close working relationship with Aboriginal child care organisations, the Inquiry received evidence of strained relations or non-existent relations in some areas (ALSWA submission127page 324, Broome and Derby Working Groups submission 518 page 3, Kimberley Land Council submission 345page28).

Indigenous children constitute approximately 4.3% of children in WA. In June 1994 they constituted 34% of all children in care. They are therefore approximately eight times over-represented in care orders.

Thorpe analysed 325 cases arising in WA between March and June 1987. He found that Indigenous children represented 23% of all neglect/abuse notifications and 32% of substantiated allegations. Further, substitute care was the outcome in substantiated cases for 52.5% of Aboriginal children compared with 22.5% of other children. ‘The more coercive and intrusive the child protectionoperation becomes, so the over-representation of Aboriginal children increases’ (Thorpe1994 page 161).

WA recently reported that about 85% of Indigenous children in out-of-home care in the State were placed with Indigenous carers at the end of June 1996 (Government Service Provision 1997 page 555).

Queensland The ACPP was adopted as the policy of the Queensland welfare department in 1987, having been adopted in draft form in 1984. If placement in accordance with the ACPP is not possible then arrangements which allow for a continuing relationship with parents and community should be developed. O’Connor reviewed the implementation of the Queensland policy for the Royal Commission into Aboriginal Deaths in Custody. He found ignorance of the policy and/or of its significance among departmental staff and

identified an urgent need for statutory recognition of the ACPP and for the development of Aboriginal care and support systems. The relevant legislation, the Children’s Services Act1965 (Qld), is currently under review.

Indigenous children constitute approximately 2% of Queensland children. The table below illustrates the proportion of children on care and protection orders who are Indigenous.

Indigenous children on care and protection orders in Queensland 1992199319941995 27.4%27.2%26.4%25.6%

Indigenous children were approximately13 times over-represented in care and protection orders in Queensland between 1992 and 1995. Indigenous children’s representation in substitute care is higher again with Indigenous children constituting 29.1% of all children in substitute care.

Tasmania The Aboriginal Child Placement Principle is set out in the Tasmanian Family Services Operational Manual 1993. The Manual uses the wording adopted by the 1986 Social Welfare Ministers’ Conference.

Whenachildisto be placed outside his/her natural family,the Family Support Worker in the Aboriginal Centre, Family Support and Care Programmust be contactedprior toplacement.

The order of priorityofplacementshould be:

A member of the child’s extendedfamily.

Other members of the child’s Aboriginal community whohave the correct relationshipwith the child in accordancewithAboriginal customary law.

OtherAboriginal families living in closeproximity.

Thisorder ofpriority ofplacement is tobefollowed in theabsenceofgood cause to thecontrary at all times.

Departmental policy in Tasmania is to provide resources and engage the assistance of community organisations in the implementation of the ACPP. The Tasmanian Aboriginal Centre runs the Aboriginal Support and Care Program mentioned in the Operational Manual. The Centre advised the Inquiry that the department contravenes the

policy by failing to notify it of Aboriginal children in care (submission 325 page13).

Indigenous children constitute approximately 3.8% of the child population in Tasmania. The following table shows Indigenous children made wards of the State as a proportion of total children made wards of the State.

Indigenous State wards in Tasmania 1991-921992-931993-941994-951995-96 7.6%9.4%17.9%10.4%3.4%

In 1995-96, for the first time, Indigenous children were not over-represented in wardship statistics. At the same time, however, as at June 1996 Indigenous children were still over-represented among all children on care and protection orders (8.4%).

ACT Although the ACT Government supports the ACPP in principle, the ACPP is not included in the Children’s Services Act 1986 (ACT) which governs fostering. The legislation is currently under review and the Government expressed its commitment to include the ACPP in the new legislation (interim submission page 24). Neither the ACT welfare department nor any of the five non-government fostering services has been successful in recruiting any Aboriginal or Torres Strait Islander foster carers.

Indigenous children constitute approximately1% of all children in the ACT. In 1994-95 Indigenous children constituted approximately 4.7% of abuse and neglect notifications and 7% of care and protection orders. This increasing over-representation with level of intervention is consistent with patterns in other jurisdictions.

Evaluation of the ACPP Recognition of the ACPP has marked a great shift in child welfare practice. Indigenous people, however, cannot control its implementation. They are not assisted or permitted to determine the destiny of their children.

Incomplete legislative recognition Despite government acceptance, the ACPP is still not legislatively recognised in Tasmania, WA, Queensland and the ACT. Legislative recognition has been recommended to governments on numerous occasions and in a range of reports and forums including the Australian Law Reform Commission report The Recognition of Aboriginal Customary Laws (1986). In 1986 the Council of Social Welfare Ministers’ Conference passed a resolution supporting the ACPP. Recommendation 54 of the Royal Commission into Aboriginal Deaths in Custody called for legislative recognition of the ACPP and the role of AICCAs and all State and Territory governments have agreed to implement it. Only two States, Victoria and South Australia, have done so in full.

Inadequate consultation with AICCAs The widespread acceptance of the ACPP has led to greater recognition of the importance of Indigenous children’s cultural needs and to improved consultation processes with Indigenous people and agencies. In all jurisdictionsIndigenous agencies in theory have an opportunity to advise on child welfare matters affecting Indigenous children. This advice is given, however, within an established bureaucratic framework that has its own requirements and approaches.

The legislative base which underpins thefunctionsof departmental officers in relation to child abuse is neither an adaptation nor a reflection ofAboriginal Traditional law. Thus, thevery basis of definitionsof responsibility of individualsinvolved in ensuring child protection is culturally biased and shouldberecognised as such (Harrison 1991 page37).

The extent and style of consultation varies across jurisdictions. In Victoria, legislation acknowledges the importance of Indigenous organisations’ advice and their right to offer an opinion. VACCA has a right to veto placement of an Indigenous child with a non-Indigenous carer and to veto the making of an order for permanent placement.

In South Australia the impact of the inclusion of Indigenous agencies is limited by the minimal requirement that decision makers need only ‘have regard’ to their opinions. Further, the Minister makes the final decision on which Indigenous organisations are to be gazetted.

In most jurisdictions the identity of ‘relevant’ agencies and thetiming and quality of consultations are not specified. The result is that discussions typically occur too late in the decision making process and in too cursory a manner to permit an effective contribution to be made. Indigenous agencies could contribute to working with the family to prevent the child being removed, working with the family to prepare it to receive the child back, locating, training and supporting an appropriate Indigenous foster carer. All of these tasks require at least that the agency is notifiedas early in the intervention process as possible. AICCAs are further constrained in the effectiveness of their contribution to retaining Indigenous children within their families and communities by limited funding (recognised in ATSIC submission 684 page 106). Inadequate funding of AICCAs Funding of AICCAs and MACS remains inadequate. Funding is often from three different sources, State or Territory Governments, the Federal Department of Community Services and Health and ATSIC. While the role of Indigenous organisations is recognised as crucial, funding is often insecure.

Services to Aboriginal children youth and families are fragmented,deficient in scope andof very limited quantity. Aboriginal families who are attempting to access services find that they may have to travel a large distance to access a particularservice (SA ACCA submission347 page 27).

Each jurisdiction has a process for consulting with Indigenous organisations about funding but Indigenous organisations are not included at all, let alone as partners, in the

decision making. For example in Queensland the funding process enables contributions from Indigenous stakeholders. They are afforded the opportunity to offer an opinion but are not included in the group which makesthe decision. They do not decide how money allocated to Indigenous groups will be spent or to whom it will be given (Queensland Government interim submission page20).

Numerous submissions to the Inquiry from Indigenous and non-Indigenous organisations pointed out that reversing the disproportionate levels of Indigenous children in out-of-home care will require the provision of resources to enable Indigenous communities and organisations to address child neglect and abuse issues in a manner which they consider is relevant to the local context.

We contend that wehave theright to choose our own destiny includingcontroloverour children. However we consider that the recent political shift towards non interventiondoesrequire a strong word of caution.With the currentneed to limit public spending, there is a tendencyfor Governments to ‘leave’ Aboriginalfamilies and communities to look after their children.We believe it wouldbe a very cruel reform indeedfor authorities to cease intervening into the lives of children whoreallyarein need, without providing the urgently needed resources that are necessaryto give Aboriginal children the care and attention they require. Governmenthelpis required, in an enablingrole,providingfinance, technical,social, and economic skills so that Aboriginalpeople can get onwith the job(workingpartyrepresenting thewelfare department, Manguri, Centacare Cottagesand Yorganop, quoted by WA Governmentsubmission, Attachment 4 on page 6).

‘Partnerships’ between Indigenous children’s agencies and government departments, where they exist, are unequal partnerships. Departments retain full executive decision making power and the power to allocate resources affecting Indigenous children’s welfare. Judicial decision making occurs within non-Indigenous courts. In no jurisdiction are Indigenous child care agencies permitted to be involved in the investigation of an allegation of neglect or abuse. The difference between being allowed to participate and having the right to make decisions is evident in Indigenous communities’ experiences of child welfare systems. Inappropriate evaluation of prospective foster carers The high percentage of Indigenous children who are placed in substitute care, in combination with ethnocentric foster carer assessment and high levels of poverty in Indigenous communities, has resulted in a great shortage of Indigenous foster carers. The research and data available clearly indicate that numbers of Indigenous children are still being placed with non-Indigenous foster carers.

Submissions to the Inquiry made recommendations to address this problem including increased training and support for Indigenous foster carers, alternative models of out-of-home care such as small cottage homes, more accessible and flexible financial support arrangements for foster carers and the recruitment of foster carers by Indigenous organisations (see for example South Australian Aboriginal Child Care Agency submission 347 pages 31-32, WA Government submission, Attachment 4). It is noteworthy that in the ACT, where no Aboriginal foster care agencies exist, welfare agencies have been unable to attract any Indigenous foster carers.

The assessment of prospective foster carers is commonly the responsibility of government welfare officers.

Past difficulties in placement practices involvingAboriginal childrenhave arisen due to, inpart, the impositionof white middle class standards and limited cultural sensitivity. Until now the selection criteria and the bureaucratic assessment processes havereflectedthe valuesof the dominant society which are alien to Aboriginal values and lifestyle (WA Government submission, Attachment 4 page 10).

The process itself operates as a powerful disincentive to Indigenous families to volunteer to be officially recognised, and subsidised, as foster carers.

… Wefirststarted fostering withachurch-based organisation. We hadto do a ‘fosteringcourse’ and they checkedoutour house and the restof thefamily as well as a police check.Thatwas a bit scarybecause you don’t knowwhat they are looking for.

They asked about our financial position. We felt that was a bit unnecessary because Aboriginal people alwayshave room for one more child. Ifwedecided tobefosterparents then we’ll share whatever we have.We’ve never had a lot – but you can always spread anotherweetbixaround!

They sent a social workerwho seemed to assess our mental state. They can’t give kids to just anyone – theyarejust too precious, so weunderstood this.But it wasunnerving, and we think this wouldprobably turnpotential fosterparents away (quoted by Link-Up(NSW) submission 186 on page 179).

Delegation of assessments to Indigenous agencies is necessary to promote the acceptance of Indigenous carers for Indigenous children who must be removed from their families.

Failure of the welfare approach Although significant, the ACPP operates within a broader context of government welfare activities which have not been able to accommodate Indigenous perspectives and needs.

Definitions of welfare, well-being, need and neglect

… this year, in 1996, I was told byonedistrict officer that an Aboriginalfamily was ‘socially impoverished’.What thehelldoes that mean?No talk about how kind they are tograndkids.It’s whitevalues beingplacedonAboriginalfamilies once again,without even thinking about it. It’s no wonder thegap between Aboriginal andnon-Aboriginalcontinues towiden.Youwould think that we wouldhave progressed more than this, but inour experience that’s not the case (quoted byLink-Up (NSW)submission 186 on page 179).